Serving All Communities

Winnie is a lesbian who lives in federally subsidized housing with her two children. Winnie’s girlfriend, Silvia, spends nearly every day at Winnie’s apartment. Silvia has told Winnie that she should add Silvia to her lease, but Winnie is afraid to ask. The last time she and Silvia were sitting on the porch holding hands, the office manager walked by and gave them a dirty look. Winnie has also found garbage left on her doorstep. Late one night, Silvia had too much to drink and got into an argument with Winnie. Silvia yelled at Winnie and slapped her, and Winnie screamed for help. The next day Winnie found on her door a lease termination notice from the housing authority, saying that her neighbor reported her for causing a loud disturbance at night. Winnie calls her local legal aid office for help; while she dials, she worries that the person who answers the phone will be hostile or homophobic.

Winnie, like all of our clients, wants to feel understood and well represented when she calls on legal aid. To help her meet her goals and accomplish our institutional mission, we have a responsibility to develop fluency with terms and issues relating to lesbian, gay, bisexual, and transgender (LGBT) people; to create an office environment that is welcoming and accessible for LGBT clients; and to develop inclusive legal, policy, and programmatic strategies. Programs across the country, from California to New York to Georgia, are taking steps to ensure that clients such as Winnie are welcomed and respected.

Why Cultural Competency

Countless low-income LGBT people rely on legal aid organizations to provide them with skilled representation so that they can maintain the basic necessities of life.1 Recent research shows that “one third of lesbian couples and 21.1% of gay male couples without a high school diploma are in poverty, compared to 18.8% of different-sex married couples.”2 Nearly one in four children who live with a male same-sex couple and 19.2 percent of children who live with a female same-sex couple are in poverty, compared to 12.1 percent of children who live with a married different-sex couple.3 More than 5 percent of people with annual incomes under $24,000 identify as LGBT, “a higher proportion than among those with higher incomes.”4

Beyond the structural injustices that lead to the nation’s generally high rates of poverty, LGBT people across every demographic face hurdles that help explain their overrepresentation in low-income communities. Lack of family or community support may stop LGBT people from relying on the informal safety nets that keep many out of poverty. The refusal of most states to recognize same-sex marriages or other same-sex relationships means that many LGBT people lack the financial security that marriage can provide, including access to health insurance coverage. A lack of explicit bans on sexual-orientation or gender-identity discrimination can create barriers to stable employment and housing. And fears about discrimination and violence by police, courts, shelters, churches, and other authorities make escaping poverty even harder for LGBT people.

LGBT people across every demographic face hurdles that help explain their overrepresentation in low-income communities.

Representation of LGBT clients is a natural fit for legal aid organizations, which typically have mission statements devoted to helping the marginalized, fighting for justice, and preserving the dignity of clients. All of these goals are relevant to the needs of low-income LGBT people, who simply seek the same equity and dignity that all of our clients want. Whatever our own identities and beliefs, legal aid staff members have a professional responsibility to serve all clients and communities with knowledge and respect. Every legal aid program undoubtedly has already served LGBT clients even if its staff is unaware of having done so. Just as programs recognize the particular vulnerabilities of clients with limited English proficiency, clients of color, elder clients, clients with disabilities, domestic violence survivors, and so on, so, too, should programs recognize that LGBT cultural competency is crucial to our work.

Working to provide competent and respectful services to LGBT clients also helps advocates meet their professional responsibility obligations. Although not considered ethical mandates, the American Bar Association’s Standards for the Provision of Civil Legal Aid provide excellent guidelines and best practices for delivery of legal aid.5 ABA standard 2.4 on cultural competence states that a “provider should ensure that its staff has the skills, knowledge and resources necessary to provide assistance in a culturally competent manner.”6 Standard 2.4 provides a framework for serving all clients in a cross-cultural practice. Moreover, it applies with equal force to providing legal aid to LGBT low-income communities.

Creating a culturally competent organization able to provide respectful services to LGBT clients cannot be accomplished in one step or one staff training.

According to standard 2.4, developing client trust and confidence is a fundamental responsibility of legal aid providers. Lack of cultural competency can be a barrier to establishing a relationship of trust and confidence with clients and can influence how the attorney-client relationship is formed. It can also affect client access to legal aid, the delivery of legal information and education to the targeted community, and the quality of the client’s representation before adversaries, administrative agencies, and the courts. Developing cultural competency in representing LGBT clients is therefore critical for legal aid programs. Cultural competency “involves more than an absence of bias or discrimination,” as the commentary on standard 2.4 explains. It involves improving the overall provision of legal services for diverse clients and developing respectful practices and responses to their legal problems.

All lawyers are required to provide competent legal services to clients. ABA Model Rule of Professional Conduct 1.1 states that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”7 In legal aid practice, serving LGBT clients competently means, at a minimum, staying abreast of the many legal changes affecting the community, being skilled at developing attorney-client relationships, and thoroughly preparing for the representation of LGBT clients in an evolving social, political, and legal landscape. Unless we understand the legal protections available to LGBT people and create a space for LGBT clients to discuss their sexual orientations and gender identities with us, we may miss available claims for relief and thus be unable to provide them with competent representation.

Lawyers must also be diligent in their representation of clients. According to ABA Model Rule of Professional Conduct 1.3, “[a] lawyer must act with reasonable diligence and promptness in representing a client.”8 Facing opposition or backlash for representing an LGBT client can pose a challenge to a lawyer or legal aid organization. But the comment on rule 1.3 makes clear that “[a] lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.”9 Despite any political unpopularity of LGBT clients, a lawyer must still act with zeal and dedication to their interests.

Given the political and cultural stigma around issues of sexual orientation and gender identity, some individuals and organizations may find that improving services to LGBT clients seems new, unfamiliar, or even uncomfortable. Meeting these challenges and evolving beyond them is part of building a culturally competent and ethical practice. Staff training creates safe spaces for workers to move beyond any initial hesitation or reluctance and to recognize that representation of LGBT clients is simply a component of effective professional service.

In dealing with our own questions, we may need to open ourselves to new understandings and approaches. And when confronted by bias, we may need to find the strength to stand firm on the side of equity. All of this takes courage, trust, collaboration, and commitment. But pushing toward greater justice is also deeply rewarding, keeping our organizations relevant in changing times and allowing us to fulfill our obligation to be zealous advocates on behalf of those we serve.

Key Elements for Culturally Competent Organizations

Six elements are essential to the development of a culturally competent organization.10

Leadership and Vision. The importance of leadership and vision in the development of LGBT cultural competency cannot be overstated. Support from an organization’s board and executive director is critical to the success of this effort. One key aspect of leadership is situating LGBT-related work within the same frame as the rest of the organization’s mission, vision, and priorities. This forms a context for weaving LGBT considerations through various organizational structures, as well as integrating them with current programming, budgeting, and other priorities. Strong commitment from the organization’s leaders is also crucial to countering any push-back or concerns about this work that staff, funders, clients, or community members may raise.

Ongoing Training, Needs Assessments, and Evaluations.Creating a culturally competent organization able to provide respectful services to LGBT clients cannot be accomplished in one step or one staff training. To ensure that LGBT-inclusive work becomes institutionalized within your organization, the staff must have periodic staff training sessions that include substantive LGBT-related legal information and policy updates. Keep your finger on the pulse of the community through periodic needs assessments conducted with LGBT clients. Ultimately you will also want to check with staff and clients about how well you are meeting your cultural competency objectives. This should be done by surveying clients and your organizational staff through evaluations. The feedback you receive will become part of your ongoing organizational growth and improvement.

Welcoming Office Climate. Your physical space, resource materials, and staff interactions all must convey a message of respect and inclusion. You must have a welcoming attitude not only while doing outreach to LGBT clients but also for your interactions with all clients, LGBT and non-LGBT alike. Non-LGBT clients may refer LGBT people for assistance or may have close friends or family members who are LGBT, and a client you think is not LGBT may later come out to you. A welcoming environment presents a message to the broader community—that your organization respects the dignity and diversity of the LGBT population.

Respectful Intake Systems. As a first point of connection for many clients, respectful intake processes are for building client trust, as well as enabling advocates to obtain critical information about the nature of a client’s situation and legal needs. For both these reasons, intake procedures need to be structured in a way that allows each client to share relevant information about the client’s sexual orientation and gender identity (as well as other aspects of the client’s life) in an inclusive and confidential manner.

Be prepared to talk about issues of sexual orientation and gender identity in a professional, nonjudgmental way that respects all clients at all intake stages.

Inclusive Case Handling Practices. Case handling practices should also be structured with an eye toward inclusivity and a commitment to meeting LGBT needs. In particular, advocates must set up thoughtful systems of organizational communication, information sharing, and record keeping that capture relevant information while protecting each client’s dignity and privacy. Advocates must bring relevant LGBT-related legal knowledge to their handling of client cases, and the organization must demonstrate respect for the rights of LGBT people in all interactions with the courts.

Active Outreach and Messaging. To complement your organization’s internal LGBT cultural competency work, active outreach and messaging is needed to connect you with potential clients who are LGBT and may need your services. Be sure to review your existing outreach and messaging materials for LGBT inclusiveness. Having materials that are specific to LGBT people—for example, for use at LGBT Pride events—helps. Also, ensure that your general outreach materials and any general community presentations (in all languages) use LGBT-inclusive language.

Work on all of six of these key elements to ensure that you are effectively and respectfully serving low-income LGBT clients. We discuss specific strategies for three of them: outreach, intake, and case handling.

Outreach to LGBT Clients

Organizations committed to LGBT cultural competency should consider ways to engage in active outreach to LGBT communities. Active outreach will help publicize your work with LGBT clients and is a way to share relevant resources. It will also send a welcoming message to LGBT people and their family members who may need your services. Because of past and ongoing experiences of discrimination or invisibility, many LGBT individuals who need access to legal aid may fear that they will not be welcome or safe within our agencies or in the justice system—and may therefore not seek out the help they need. Outreach is key to turning this dynamic around by broadening general awareness of legal aid among low-income LGBT populations.

Organizations can use these strategies to reach prospective LGBT clients:

1. Showcase Your Commitment. Include a brief statement or section on your website and written outreach brochures, flyers, or other materials to highlight the organization’s inclusiveness, expertise, and concern for LGBT issues. Including some LGBT-specific information and examples in your organization’s general presentations or brochures is particularly helpful. At any of your presentations, keep in mind that there is likely an LGBT person or an LGBT person’s close friend or family member in the audience.

You can make your office space welcoming by hanging posters or signs on LGBT issues in your waiting area or outside your office along with other materials and information. If you have materials in your waiting area, include some LGBT-specific ones. If you have lists of targeted populations on any flyers or brochures for your organization, be sure to include LGBT people in those lists. If you give information in other languages, be sure to include LGBT content in each language.

2. Spread the Word. Reach out directly to LGBT communities with information about your services and expertise. Research LGBT populations in your area—who they are, what legal needs they may have, how you might best connect with them. Spread the word about your work through relevant publications, word of mouth, and organizational connections, as well as by supporting and attending LGBT community events.

3. Partner with LGBT Organizations. Partnering with LGBT organizations and community groups is crucial to building successful outreach. Research potential partners and create genuine, mutually beneficial relationships with them. Be an ally, share your resources, and open yourself to learning from their experiences. Draw on your community partners’ relationships with LGBT individuals to increase visibility and attract potential legal aid clients. Some groups you may consider partnering with are culturally based LGBT groups, policy organizations, political groups, safe-school organizations, faith-based groups and open and affirming churches, LGBT health and wellness projects, LGBT community centers, LGBT youth and family organizations, and LGBT employee groups.

At the larger community level, show your commitment to LGBT inclusiveness and equality by supporting and participating in LGBT community events, such as annual LGBT Pride parades, organizational fund-raisers, film screenings or festivals, or LGBT cultural events.

4. Speak out on LGBT Rights. Show your solidarity with LGBT communities by signaling your support for civil and human rights. For example, if an LGBT-bullying incident or hate crime surfaces in your community, you could conduct legal rights workshops to educate community members on the issues and to reach other potentially affected victims.

Intake Systems

Many legal aid organizations do not currently inquire about a client’s gender identity or sexual orientation. This, however, can make serving LGBT clients difficult. The best practice is to incorporate questions about gender identity and sexual orientation into your standard intake form and allow clients to self-identify. For some organizations, changing the standard intake form may not be possible. The next best practice is to include these questions in the intake interview for all prospective clients. At a minimum, every advocate and intake worker must be trained and prepared to have respectful discussions about sexual orientation and gender identity with clients.

Why Asking Questions About Sexual Orientation and Gender Identity Matters. Clients must be able to talk about sexual orientation and gender identity with you. Asking about sexual orientation and gender identity sends an affirming and welcoming message to LGBT clients. And by allowing clients to self-identify their gender, our advocates can then use appropriate pronouns, titles, and chosen names to address and advocate for them appropriately and respectfully.

Another reason why we ask our clients to self-identify is directly related to legal counseling. We need the information to help us better understand our clients’ circumstances, determine whether they may have legal claims related to sexual orientation or gender identity, and openly ask questions to help develop the legal theories of their cases. Self-identifying on an intake form or in the intake interview allows each client to disclose the client’s identity to us in a direct, matter-of-fact way. The advocate can then ask questions and explore whether the client’s identity is tied in any way to the client’s legal issues. While our clients may not always come to us with legal problems that appear at first glance to be tied to LGBT issues, we must know how our clients self-identify because clients often do not realize that they may have legal protections as LGBT people.

For example, a client comes to your office with what appears to be an unemployment insurance denial. The client explains that he was asked to resign from work voluntarily because he was truant. The employer challenges his application for benefits because it argues that the client quit work voluntarily and without good cause. After several interviews, the client discloses that he is gay. The advocate then explores whether the client suffered harassment at work. Indeed he had been harassed because of his gender presentation, and he was not aware that harassment based on failure to conform to stereotypes about gender could be illegal under Title VII. He was aware that the harassment caused him depression and in turn caused him to be late to work, but he did not know that the harassment was relevant to his case. The harassment he suffered and his employer’s failure to take corrective action were good cause to quit the job. His seemingly voluntary termination of employment was a constructive discharge. Had the client been asked about his sexual orientation up front, the advocate could have explored whether the client was discriminated against at work and developed a legal theory at a much earlier phase of the case. Getting this information early not only helps the advocate develop a more coherent legal theory of the case but also can matter in cases where a deadline to file is quickly approaching.

Questions about sexual orientation may also inform the type of investigation needed for the case. Take the above example. If the employer denied having knowledge about the client’s sexual orientation, the advocate could ask the client whether the client had listed a domestic partner or same-sex spouse on any employee benefit forms, thereby giving the employer actual knowledge about the client’s sexual orientation. Asking for information about the client’s sexual orientation and about a same-sex spouse or partner on the intake form or up front in the intake interview can help the advocate quickly investigate and collect evidence for the case.

For some cases, the need to gather information and rule out LGBT discrimination can be extremely urgent. Take, for example, eviction cases. If a client gets a three-day notice to pay rent or quit, the advocate needs to be able to investigate quickly whether the eviction was based on discrimination. If the client discloses an LGBT identity, the advocate can explore whether LGBT discrimination played a role in the eviction case.

The best practice is to incorporate questions about gender identity and sexual orientation into your standard intake form and allow clients to self-identify.

Inquiring about a client’s gender identity opens up a discussion about strategies for preventing discrimination. For a transgender client, you may need to explore whether the client has identity documents that align with the client’s gender identity and lived name. This may lead to additional legal counseling around options and strategies for presenting the client’s identity before administrative agencies and courts.

A client’s gender identity may also lead the advocate to advise the client to obtain a court-ordered legal name and gender change. Many transgender clients are not aware of the legal requirements for obtaining such changes. Instead many suffer harassment and “outings” in their daily transactions with the world because their identity documents do not contain their lived gender markers and names. Counseling on this topic is part of an overall advocacy strategy for transgender clients.

How and Where Questions About Gender Identity and Sexual Orientation Should Be Asked. In order to get information about sexual orientation and gender identity, we must be able to preserve the client’s right to confidentiality. The context in which our clients give us this information must also be kept private. Intake forms and interviews should be completed in private in such a way that the information is not shared with third parties. Considerations of privacy should already inform an organization’s procedures because clients often disclose confidential information in forms and interviews.

Include a brief statement or section on your website and written outreach brochures, flyers, or other materials to highlight the organization’s inclusiveness, expertise, and concern for LGBT issues.

One approach to asking questions about gender identity and sexual orientation could involve asking these questions in the section inquiring about other demographic data. Under a section inquiring about a client’s age, race, and so on, you could ask the client to self-identify gender and sexual orientation in the following manner:

[“Transgender” means a person whose gender identity is different from the gender assigned at birth.]

Sexual Orientation:

I consider myself:

Straight/Heterosexual

Bisexual

Gay

Lesbian

By giving clients the opportunity to self-identify sexual orientation and gender, we open up an attorney-client relationship that allows for a more effective investigation, thorough counseling, and impactful advocacy strategy. By asking clients to self-identity sexual orientation and gender, we can better serve them.

Intake Practice Tips. The following are practical tips for respectful and helpful intake communication.

1. Ask About A Client’s Sexual Orientation or Gender Identity Just As You Would Ask Any Other Questions About the Client’s Life or Identity. When collecting information from a client, include questions about the client’s sexual orientation and gender identity, along with questions about other background characteristics.

Do not create a stigma when asking these questions by stating that the questions are “personal questions” or may be “sensitive.” Telling a client that questions about sexual orientation or gender identity are going to be too personal or sensitive sends the message that there is something wrong with being LGBT or that you are uncomfortable with LGBT clients. In reality, your entire intake sheet may involve personal or sensitive questions. Questions about a client’s race, income, citizenship, and experience with domestic violence, or other similar questions, are all personal and sensitive in nature. But saying they are so does not help a client share this information with you. Instead, at intake’s very beginning, let the client know that the client’s information will be kept confidential and is to be used for purposes of providing needed services, and then make sure that that you keep the information confidential according to your organization’s protocol.

2. Use Language that Does Not Implicitly Assume the Client’s Sexual Orientation or Gender Identity.Using inclusive language that does not assume the gender of your client or your client’s significant other sends a message that your client can talk to you safely about the client’s sexual orientation or gender identity. Use such inclusive language with all clients, not just the ones whom you think may be LGBT—you cannot tell by looking at a client what the client’s sexual orientation or gender identity is. For example, ask a client “Are you in a relationship?” instead of “Do you have a boyfriend?”

3. Be Prepared to Talk About Issues of Sexual Orientation and Gender Identity in a Professional, Nonjudgmental Way. Whatever your intake method, be sure that you and your colleagues are prepared to talk about issues of sexual orientation and gender identity in a professional, nonjudgmental way that respects all clients at all intake stages. A client may not initially be comfortable discussing gender identity or sexual orientation with intake staff or may not realize that such information could be relevant to the client’s legal case. Some LGBT clients may disclose aspects of their sexual orientation or gender identity after the initial interview, or they may have legal issues that require staff to ask further questions about identity, family life, or medical history and needs. Being prepared to ask about and receive this information without making assumptions about a client’s sexual orientation or gender identity at the outset, and being able to talk with a client about the client’s options without judgment, are ways to maintain a respectful and professional environment for LGBT clients.12

While understanding the basic terminology related to sexual orientation and gender identity, you must allow each client to describe the client’s own identity even if the term that the client uses may not seem to match your understanding of the term. For example, a woman who is in a relationship with another woman may identify as gay instead of lesbian, or she may identify as bisexual. Persons can identify as transgender regardless of how they express their gender and whether or not they have had any surgery or medical treatment. We do not need to inquire into a client’s life, dating practices, or medical history to understand how the client self-identifies—all we need to know is which terms the client wishes to use.

Clients may also identify as queer, gender-queer, or by other terms you might not commonly use or hear. If you work with clients in other languages, you should connect with native speakers of those languages who work with the LGBT community to find out what terms are considered appropriate and respectful.

4. Be Prepared to Give a Clear Explanation if a Client Asks Why You Are Asking About Sexual Orientation and Gender Identity. If the client does ask why you are inquiring about gender identity and sexual orientation, you can explain that you serve a diverse community and want to do a better job of serving the community. You can also note that you are looking for ways to improve your outreach and services to the LGBT community and that a person’s gender identity or sexual orientation might have some legal relevance to certain claims. You can explain to the client that giving this information may help you decide on the best strategies and legal theories and helps you avoid making decisions or recommendations based on assumptions.

Case Handling

Ensure that your systems and policies for handling cases are set up to allow you to serve LGBT clients respectfully. Making the following small adjustments to your case management procedures can help you provide consistently respectful services.

1. Develop Systems to Ask About, Make Note of, and Use Clients’ Preferred or Lived Names. Ask each client, especially your transgender clients, what name the client uses in everyday life. If a client has a legal name on a birth certificate that is not used in daily life, you may want to enter the client’s lived name in your case management system with a case alert that the client has another name and what that name is. As a best practice, use the client’s lived name on files, intake forms, and case management systems so that when the client calls or comes in, the front desk and the advocate are in the habit of using the client’s lived name.

2. Ensure that Staff Members Have Access to Client Information as Necessary. Have a process in place for ensuring that everyone who interacts with a client knows the client’s lived name or gender if either differs from the client’s legal name or gender. Also, have processes in place to share relevant information about a client’s sexual orientation and gender identity with those who are working on the case so that the client does not need to keep repeating them.

3. Develop Systems of Record Keeping that Are Respectful of LGBT Clients. Your case management system should be set up to allow a same-sex partner to be listed as a client’s partner, and staff should be instructed to note any legal relationships between the client and the client’s partner. What can be legally significant is if the client and partner are legally married, in a civil union, or in a domestic partnership—even if the state they live in does not recognize their relationship.

Case files for transgender clients should be labeled with the client’s lived name, even if it is not the client’s legal name, and the client’s lived gender should be marked in the demographic data.

4. Demonstrate Respect for Clients and Their Identities in Interactions with the Court. Be sure to show respect for LGBT clients and their identities in all interactions with the court. One way of showing respect is by using a client’s lived name and gender pronouns to the greatest extent possible (checking with the client beforehand that this is appropriate). Before you use a client’s lived name and pronouns in court pleadings, include a brief note that you plan to do so. When a transgender client’s name and gender have been legally changed, and there is no issue in the case relating to the client’s gender, there is no need to explain the former name or transgender status on pleadings or other documents.

5. Respect Client Confidentiality Around Sexual Orientation and Gender Identity. Sometimes a client may not want information about sexual orientation and gender identity shared outside your organization. Put processes in place for maintaining the confidentiality of such information in the event a client wishes to keep the information private. For example, forms should have a space to mark clearly that a client does not wish to have the client’s legal name shared with others outside the organization (as this might out them as transgender). In general, staff should check with the client before sharing information about the client’s sexual orientation or gender identity outside the organization.

By making small changes in practices and policies, legal services organizations can make a big difference in allowing LGBT clients to access services and receive competent representation. Talking with clients about sexual orientation and gender identity helps create a respectful and welcoming environment. It also allows advocates to identify information necessary for competent representation; even if your state does not have specific laws prohibiting discrimination based on sexual orientation or gender identity, your client may have federal claims, and even if your state does not recognize marriages between same-sex couples, the federal government recognizes these marriages for many purposes. Without creating a space for LGBT clients to talk about sexual orientation and gender identity, advocates may miss potential claims and legal protections, thereby preventing them from fulfilling their ethical responsibilities to provide competent representation. Legal services organizations are already serving LGBT clients, but without changing our practices and policies to allow us to provide respectful and competent services to them, we cannot fulfill our mission to ensure that all people have equal access to justice.

10 This discussion of the key elements of culturally competent organizations, as well as the following tips on outreach, intake, and case handling, is based in part on training materials created by the National Center for Lesbian Rights and California Rural Legal Assistance for use in training legal services offices on serving lesbian, gay, bisexual, and transgender clients. For more information about our legal services training project, please contact us (see authors’ contact information at the end of this article).

11 This blank space may be used by a client to self-identify however the client chooses.